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Newsletter on military law and counseling : a supplement to the CCCO military counselor's manual

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-8- October-November 1973 NOMLAC
No. 72-2065 (CA 3, September 26, 1973).
Army Sergeant First Class Jaroslav Sedivy was arrested, along with three other
enlisted men, December 10, 1971 after military and civilian law officers raided
Sedivy's house trailer and seized some amphetamines and marijuana.
Sedivy petitioned district court to keep the Army from court-martialing him.
The judge ruled in Sedivy's favor, stating that because the alleged drug offense occurred off-base, off-duty and out of uniform it was not "service-connected" under O'Callahan V. Parker, 395 US 258 (1969) and thus the Army could
not court-martial him. (The US Court of Military Appeals takes a contrary view
and has ruled that all drug-related offenses, regardless of when/where they
occur, are "service-connected" and can be tried in military courts).
Third Circuit Judge Aldisert disagreed with the district court finding, however, saying that because Sedivy could have pleaded lack of jurisdiction at
any court-martial, he had not exhausted his in-service remedies.
Aldisert also ruled that civilian courts do not have the equity power to
prevent the military from making fact findings or court-martial jurisdiction
determinations.
"It is in the military court that SFC Sedivy may present the facts and the
appropriate motion to oust military jurisdiction", Aldisert stated.
One federal judge, Samuel King, had the foresight and common sense to see
where such a contention, if enacted, would leave persons in Sedivy's position.
King, in Redmond, et al., v. Warner, »55 F. Supp. 812 (DC-Haw., February 20,
1973), stated that even though the petitioners, charged with drug crimes, had
not taken their case to'military trial, the federal court could intervene because Redmond and the others were likely to be tried and convincted in military
court.
King stated that where a question of jurisdiction lies and where military courts
differ from civilian courts "there is no principle of justice that requires a
person to go through the experiences, expenses, and delays of being arrested,
subjected to pretrial confinement, investigated, tried, denied relief on appeals,
and incarcerated before being permitted to invoke constitutional protections,
before an Article III federal court". At least one recent decision, MaCakill
v. Eason, et al., 361 F. Supp. 588 (ND-Fla., June 12, 1973), closely parallels
Judge King's in Redmond (see "Notes for Military Lawyers", this issue).
Presumably, even under Sedivy, if a military judge accepts jurisdiction and
orders court-martial in such "service-related offense" cases, the soldier can
immediately file in federal court to halt the proceedings, though civilian
judges may shy away from intervening until any court-martial is completed.
In the end, unless the Supreme Court decides the service-connected crime
question, some servicemen, because of Sedivy, will face the unnecessary ordeals of trial, confinement and futile appeals which Judge King sought to
avoid.
AF Will Operate Without These Doctors
Two Air Force physicians whose medical schooling was financed by the military,
and who "owed" approximately nine and ten years' service time, respectively,
have been discharged as COs by federal court, with neither having to do civilian work in return for their education.

Copyright belongs to the individuals who created them or the organizations for which they worked. We share them here strictly for non-profit educational purposes. If you believe that you possess copyright to material included here, please contact us at asklibrary@wisconsinhistory.org. Under the fair use provisions of the U.S. copyright law, teachers and students are free to reproduce any document for nonprofit classroom use. Commercial use of copyright-protected material is generally prohibited.

Copyright belongs to the individuals who created them or the organizations for which they worked. We share them here strictly for non-profit educational purposes. If you believe that you possess copyright to material included here, please contact us at asklibrary@wisconsinhistory.org. Under the fair use provisions of the U.S. copyright law, teachers and students are free to reproduce any document for nonprofit classroom use. Commercial use of copyright-protected material is generally prohibited.

\
-8- October-November 1973 NOMLAC
No. 72-2065 (CA 3, September 26, 1973).
Army Sergeant First Class Jaroslav Sedivy was arrested, along with three other
enlisted men, December 10, 1971 after military and civilian law officers raided
Sedivy's house trailer and seized some amphetamines and marijuana.
Sedivy petitioned district court to keep the Army from court-martialing him.
The judge ruled in Sedivy's favor, stating that because the alleged drug offense occurred off-base, off-duty and out of uniform it was not "service-connected" under O'Callahan V. Parker, 395 US 258 (1969) and thus the Army could
not court-martial him. (The US Court of Military Appeals takes a contrary view
and has ruled that all drug-related offenses, regardless of when/where they
occur, are "service-connected" and can be tried in military courts).
Third Circuit Judge Aldisert disagreed with the district court finding, however, saying that because Sedivy could have pleaded lack of jurisdiction at
any court-martial, he had not exhausted his in-service remedies.
Aldisert also ruled that civilian courts do not have the equity power to
prevent the military from making fact findings or court-martial jurisdiction
determinations.
"It is in the military court that SFC Sedivy may present the facts and the
appropriate motion to oust military jurisdiction", Aldisert stated.
One federal judge, Samuel King, had the foresight and common sense to see
where such a contention, if enacted, would leave persons in Sedivy's position.
King, in Redmond, et al., v. Warner, »55 F. Supp. 812 (DC-Haw., February 20,
1973), stated that even though the petitioners, charged with drug crimes, had
not taken their case to'military trial, the federal court could intervene because Redmond and the others were likely to be tried and convincted in military
court.
King stated that where a question of jurisdiction lies and where military courts
differ from civilian courts "there is no principle of justice that requires a
person to go through the experiences, expenses, and delays of being arrested,
subjected to pretrial confinement, investigated, tried, denied relief on appeals,
and incarcerated before being permitted to invoke constitutional protections,
before an Article III federal court". At least one recent decision, MaCakill
v. Eason, et al., 361 F. Supp. 588 (ND-Fla., June 12, 1973), closely parallels
Judge King's in Redmond (see "Notes for Military Lawyers", this issue).
Presumably, even under Sedivy, if a military judge accepts jurisdiction and
orders court-martial in such "service-related offense" cases, the soldier can
immediately file in federal court to halt the proceedings, though civilian
judges may shy away from intervening until any court-martial is completed.
In the end, unless the Supreme Court decides the service-connected crime
question, some servicemen, because of Sedivy, will face the unnecessary ordeals of trial, confinement and futile appeals which Judge King sought to
avoid.
AF Will Operate Without These Doctors
Two Air Force physicians whose medical schooling was financed by the military,
and who "owed" approximately nine and ten years' service time, respectively,
have been discharged as COs by federal court, with neither having to do civilian work in return for their education.